Illinois Supreme Court Weighing Seizure Of Woman's Harley

Her husband drove drunk on her motorcycle. Should the state get to take it away?

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Brian Mackey reports on a case that asks whether a woman should have to forfeit her Harley because she allegedly allowed her husband to drive it while drunk.

Petra Henderson was the designated driver on a bar crawl with her husband. But after the last stop of the night, she says he jumped on her Harley and offered a choice: get on the back or walk home.

An argument ensued, but Henderson eventually got on board. It was only 12 blocks to their home in Robinson, but police saw the motorcycle swerving, and the husband was arrested for driving under the influence of alcohol.

The government says Henderson consented to letting her husband drive drunk — and on a suspended license — so it moved to seize the Harley.

A trial judge approved the seizure, saying he didn’t believe the Hendersons' story, but that was reversed on appeal.

Arguing for the government Wednesday was Assistant Attorney General Jason Krigel. He told the Illinois Supreme Court that the state has an interest in preventing alcohol-impaired driving, and only allows forfeiture in a narrow range of cases.

“It doesn’t apply to every DUI. It doesn’t even apply to every aggravated DUI,” Krigel said. “The General Assembly has identified particular crimes that warrant this additional deterrence and punishment. For instance in this case, claimant’s husband was intoxicated; he also had to be driving on a revoked license and it had to have been revoked because of a previous DUI conviction.”

Krigel also says Henderson is culpable for her husband’s crime because she consented to let him drive home. That drew a skeptical inquiry from Justice Anne Burke: “In real life, what is she supposed to do? Drag him off the motorcycle? So what kind of consent is that?"

Krigel says the trial judge didn’t believe that story.

For her part, Henderson says she paid $35,000 for the motorcycle in 2010, and was still paying it off when it was seized in 2014. She argues that taking it is an "excessive fine,” prohibited by the U.S. Constitution.

“I would submit, your honor, the thing that Petra did wrong that night was exercise bad judgment,” her lawyer, James Campion, told the justices. “The facts show that she was arguing with her husband in the parking lot at 12:30 at night — of the bar — as to whether he should drive or not. Knowing that the trip was only going to be three to five minutes, she then made the decision to allow him to drive while he was intoxicated.

“For this act of hers, this bad judgment, the state feels that the taking of her valuable motorcycle … was justified,” Campion said. “We would submit that under the facts of this case, the forfeiture Petra Henderson’s motorcycle was an excessive fine, and in fact was in violation of the Eighth Amendment of the United States Constitution.”

Civil asset forfeiture — when the government can take property even without charging someone with a crime — has been the target of attacks by civil libertarians. Law enforcement, on the other hand, has defended the practice.

Brian Mackey brings us this look at how the debate is playing out in Illinois.

A version of this story was broadcast June 7, 2016 on Illinois Edition.

Data from the Illinois Secretary of State's office show that more than 5,000 Illinoisans who were convicted of drunken driving four times and had their licenses revoked could legally drive again under a new state law.

Gov. Bruce Rauner last month signed the measure, which would provide restricted permits if drivers prove they are drug and alcohol free for at least threeyears.

More than half of the 5,085 eligible drivers live in the Chicago area.

No justice of the Illinois Supreme Court has lost a retention election since the up-or-down system was put in place 50 years ago. Last fall, Justice Lloyd Karmeier came close. He squeezed into another decade on the bench with just 2,921 votes to spare — less than eight-tenths of a percentage point above the required 60 percent threshold. His brush with late retirement — Karmeier turned 75 in January — was brought about by a nasty, last-minute advertising blitz for which the judge was ill-prepared.